Michigan Law Review Volume 74 Issue 3 1976 The Schneiderman Case: An Inside View of the Roosevelt Court Jeffrey F. Liss United States District Court for the District of Columbia Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Immigration Law Commons, Military, War, and Peace Commons, National Security Law Commons, and the Supreme Court of the United States Commons Recommended Citation Jeffrey F. Liss, The Schneiderman Case: An Inside View of the Roosevelt Court, 74 MICH. L. REV. 500 (1976). Available at: https://repository.law.umich.edu/mlr/vol74/iss3/2 This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE SCHNEIDERMAN CASE: AN INSIDE VIEW OF THE ROOSEVELT COURT Jeffrey F. Liss* NLY rarely in the study of Supreme Court history do events, O personalities, records, and historical sources converge to afford an intimate view of that institution. Schneiderman v. United States,1 in its own right an important decision in the field of denaturalization law, provides such an opportunity. The manuscript collections of the major adversaries on the Court are well-preserved, 2 and a surviving major figure from among the parties to ·the litigation has provided personal insight into the intricacies of the case. 8 Decided during World War II in a political context that affected the Court's deliberations, if not its ultimate decision, Schneiderman was a source of deep and lasting division in the Roosevelt Court. While American armed forces struggled in the European and Pacific theaters during the early years of World War II, government officials on the home front sought to ensure internal security. A key weapon in the domestic arsenal was the statutory authority to denaturalize for­ eign-born citizens whose citizenship had been fraudulently or illegally procured.4 By the end of 1942, forty-two such denaturalization • Law Clerk to the Honorable Charles R. Richey, United States District Court for the District of Columbia; Member of the District of Columbia Bar. B.A., 1972; J.D., 1975; M.A. (hist.), 1975, University of Michigan.-Ed. The author expresses his appreciation to Professor Sidney Fine, University of Michigan, for his assistance and encouragement. 1. 320 U.S. 118 (1943 ). 2. The Frank Murphy Papers [hereinafter Murphy Papers] are located at the Michigan Historical Collections, Bentley Historical Librazy, University of Michigan, Ann Arbor, Michigan. The Felix Frankfurter Papers [hereinafter Frankfurter Pa­ pers] and the Harlan Fiske Stone Papers [hereinafter Stone Papers] are located in the Manuscript Division of the Librazy of Congress, Washington, D.C. Frankfurter's summaries of the Schneiderman conferences and his diazy entries relating to Sclznel­ derman can also be found in J. LASH, FROM THE DIARIES OF FELIX FRANKFURTER 208-17, 248-50, 251-59 (1915). 3. The Honorable Charles Fahy, now Senior Judge of the United States Court of Appeals for the District of Columbia Circuit, was Solicitor General of the United States at the time of the Schneiderman case and represented the government before the Supreme Court. Judge Fahy consented to an interview with the author for pur­ poses of this article; the interview was conducted on Aug. 15, 1975 in Judge Fahy's chambers [hereinafter Fahy interview]. The author gratefully acknowledges Judge Fahy's cooperation and assistance. 4. The relevant statutozy provision for denaturalization proceedings against a citi­ zen naturalized before 1940 was the Naturalization Act of 1906, ch. 3592, § 15, 34 Stat. 601. That provision was continued in the Nationality Act of 1940, ch. 876, § 338, 54 Stat. 1158. In the Immigration and Nationality Act of 1952, illegal pro- 500 January 1976] The Schneiderman Case 501 actions had been successfully prosecuted, another three hundred were pending in the federal courts, and more than two thousand other cases were under active investigation. 5 The denaturalization procedure, however, posed serious legal problems. In order to gain citizenship, a foreign-born applicant had to demonstrate to a court that for five years preceding his applica­ tion he had resided in the United States and had behaved "as a man . attached to the principles of the Constitution . ."6 In a denaturalization proceeding, the government would typically attempt to show that citizenship had been fraudulently or illegally procured because, notwithstanding the admitting court's finding, the natural­ ized citizen did not have the requisite "attachment" at the time of his naturalization. It was inevitable that . such proceedings, often intended to nullify citizenships granted years earlier, would be challenged in the courts. The wartime denaturalization program was aimed primarily at citizens of Italian and German descent;7 however, Schneiderman, the first challenge to the program to reach the United States Supreme Court, involved a Russian-born citizen. An immigrant to the United States at the age of three, William Schneiderman grew up in Cali­ fornia. 8 In 1922, at the age of sixteen, Schneiderman became a charter member of the Young Workers League (known later as the Communist League) and remained a member for seven or eight years. He served as educational director of the League from 1922 to 1925 and as its official spokesman in 1928. In 1924 or 1925, shortly after he filed his declaration of intention to become a citizen, Schneiderman also joined the Workers Party, the predecessor of the Communist Party of the United States, and was its corresponding secretary in 1925 and 1926. In 1927, the United States District Court for the Southern District of California approved his application, and Schneiderman became a naturalized citizen. The court never asked Schneiderman whether he was affiliated with the Communist Party,9 although in his petition for naturalization Schneiderman curement of citizenship was not explicitly made a ground for denaturalization. Im­ migration and Nationality Act of 1952, ch. 477, § 340, 66 Stat. 260. Illegal procure­ ment was restored as a ground for denaturalization in 1961. Act of Sept. 26, 1961, Pub. L. No. 87-301, § 18, 75 Stat. 656 (codified at 8 U.S.C. § 1451 (1970) ). 5. P. MURPHY, Tim CONSTITUTION IN Crus1s TIMES 1918-1969, at 228 (1972). 6. Naturalization Act of 1906, ch. 3592, § 4, 34 Stat. 596. 7. P. MURPHY, supra note 5, at 228. 8. The discussion of Schneiderman's background is drawn from 320 U.S. at 120- 31. 9. When the Schneiderman case was before the Supreme Court Hi years later, Schneiderman's lawyer informed the Court that Schneiderman ''was never asked if 502 Michigan Law Review [Vol. 74:S00 stated, "I am not a disbeliever in or opposed to organized govern­ ment or a member of or affiliated with any organization or body of persons teaching disbelief in or opposed to organized govemment."10 After his naturalization, Schneiderman continued his activities with the Party, serving as its organizational secretary in California, then in Connecticut, and finally in Minnesota, where he also ran unsuc­ cessfully as the Communist Party candidate for governor in 1932. He became a member of the Party's National Committee in 1934. On June 30, 1939, twelve years after Schneiderman had been naturalized, the United States initiated a denaturalization proceeding against him, claiming that, at the time of his naturalization and for five years preceding it, Schneiderman "was a member of . certain organizations . whose principles were opposed to the principles of the Constitution . and advised, advocated and taught the over­ throw of the United States by force and violence."11 The United States· District Court for the Northern District of California nullified Schneiderman's citizenship, 12 and the Ninth Circuit Court of Appeals affirmed.13 The Supreme Court then granted certiorari.14 The case was originally argued before the Court on·November 9, 1942, with erstwhile presidential candidate Wendell Willkie repre­ senting Schneiderman at no charge15 and Solicitor General Charles Fahy representing the government. Only seven of the justices heard the case; there was one vacancy on the Court at the time, and Justice Robert H. Jackson disqualified himself because he had been ap- he was a member of the Communist Party. I don't think it ever occurred to any one to ask him." N.Y. Times, March 13, 1943, at 15, col. 6 (late city ed.). 10. Schneiderman v. United States, 119 F.2d 500,501 (9th Cir. 1941). 11. 320 U.S. at 121-22. 12. 33 F. Supp. 510 (N.D. Cal. 1940). 13. 119 F.2d 500 (9th Cir. 1941). 14. 314 U.S. 597 (1941). Schneiderman presented the Court with an opportu­ nity to expand its assessment of the legal problems regarding denaturalization. Prior to Schneiderman, the Court had merely upheld the constitutionality of the 1906 de­ naturalization provision. See Luria v. United States, 231 U.S. 9 (1913); Johannessen v. United States, 225 U.S. 227 (1912). 15. Attorney Carol King had represented Schneiderman in the lower courts, but when the Supreme Court granted certiorari she wrote to Wi11kie-with whom she had no personal acquaintance or connection-and asked him to take the case in the Su­ preme Court. King sent along a copy of the brief she bad filed in the court of ap­ peals; the inequities of Schneiderman's situation, as reflected in the brief, apparently made a great impression on Willkie. He took the case, without compensation, not­ withstanding that it seemed an act of "political suicide." E. BARNARD, WENDELL WILLKIE: FIGHTER FOR FREEDOM 400 (1966). A contrary view concerning whether it was politica11y courageous of Wi11kie to take the case is offered in J.